Liberalism and Legitimacy

February 3rd, 2017  |  Published in Politics, Socialism

The ethics of punching Nazis may be exhausting its useful life as a topic for punditry. But there’s one aspect of the debate that perhaps hasn’t received sufficient attention.

In the wake of Richard Spencer’s punching, and the shutdown of Milo Yiannopoulos’s speech in Berkeley, debate flared over whether these actions were justifiable and necessary direct action against the far right, or whether they represented something counter-productive or even politically unprincipled.

First, it’s necessary to pull apart several different things that are being argued about, which tend to get confusingly mashed together.

Some want to argue the question of whether the Left should use “violence”. But most of what we’re arguing about should not be described as violence. Punching Richard Spencer in the head would certainly qualify, albeit in a fairly minor way; but much of what people are calling violence is really just property destruction, the smashing of windows or the burning of limos. We should make a clear distinction between the mere destruction of objects and actual violence against human beings. Spencer notwithstanding, the worst violence seen thus far has come from supporters of the right.

A second separation we ought to make is between the general strategy of denying fascists a platform to speak, and specific, more disruptive “black bloc” tactics, including the aforementioned smashing of windows. One can affirm the validity of the strategy while questioning the tactics. A good example of this, dating back to the aftermath of the Occupy Oakland protests of 2011, is this post from rapper and communist organizer Boots Riley. Here he is talking about acts like window smashing as impediments to organizing, not as things that are always wrong in principle.

So we have three issues: violence, black bloc tactics, and the strategy of denying a platform to fascists. I’m not concerned here with debating the first two. The first because there has been so little actual violence, and the most notable has come from the right. The second because, while I tend to agree that adventurist tactics are often counterproductive for the Left and can put other activists at risk, this is a problem of discipline that movement organizers have to figure out how to solve internally. I doubt I have much to contribute as an outside observer.

My concern is with the broader issue of denying fascists the ability to spread their message. Was it right to interrupt Richard Spencer’s interview? (Whether or not one thinks it should have been done with an elbow to the head.) And was it right to organize protests large enough to prevent Milo from speaking at the University of California, after the school had approved his event? My starting point is generally that the far right does not respect norms of liberal discourse, and advocates positions that should be outside the realm of reasonable debate. So we shouldn’t feel bound by the terms of liberalism either when dealing with them.

This is the point in the conversation where we conventionally move to debating “free speech”, and whether the unconditional right of speech is something to be defended by the Left in all circumstances. But there are some problems that arise when we try to define just what a “right to free speech” includes, or doesn’t include.

A recent Peter Beinart article is representative of the liberal line that says “you can’t shut down a talk, everyone has a right to free speech!” Beinart essentially says that every student at Berkeley should have an equal right to give a platform to whatever speech they like, and thus the Left has failed by denying the College Republicans their inalienable right to hear Milo.

One response to this is that it’s misleading to say that protesters are abridging “the right of free speech” by shutting down an event. The argument is summarized in this XKCD cartoon: free speech means that the state can’t censor your expression, not that you are guaranteed an audience and a platform wherever and whenever you want. When someone cries “free speech” and shouts “help help I’m being repressed” upon being banned from a blog comment thread, this makes for a handy response. And since almost nobody is calling on the government to ban fascist speech at the moment, we could say that “free speech” is an irrelevant argument in this context.

This is fine as far as it goes, but one could easily respond: sure, that’s the constitution’s definition of free speech, but it doesn’t have to be ours. Some would argue that it is simply contrary to core leftist principles to deny even the most odious people their opportunity to speak. Others argue from a more strategic perspective, claiming that shutting down right wing speech will inevitably backfire, because it will draw sympathy and attention to it, and because the right and their allies in the state apparatus are more willing and able to restrict expression than we are.

The strategic argument is one I find wanting. The argument against “drawing attention” to the far right only makes sense if you think they will win because their ideas have so much inherent mass appeal, rather than because such movements rely on intimidation and force. And as for the backlash argument, it’s not clear to me how leftist actions are causally related to right wing moves toward censorship. The Right will certainly deploy the trope of free speech–as many of them did to me when I tweeted my support for the actions in Berkeley. But it would be foolish to believe that they have any actual intention of respecting our speech rights should they achieve greater power, whether or not we honor theirs. In other words, the Trump administration didn’t start shutting up the EPA on climate change because somebody interrupted Richard Spencer.

The argument from first principles seems harder to refute; you either believe it or you don’t. You could argue that the principle fails because the distinction between “speech” and “action” is impossible to cleanly maintain. That, as Austin and other speech act theorists argued, words can sometimes directly do things in the world. This is certainly applicable to Milo, who has been known to promote harassment of trans people and who apparently intended to directly target immigrant students at his Berkeley event.

However, this quickly gets us back into the world of legalism and logic-chopping, and debating what is or isn’t an innocent or “protected” act of speech. Is this mere rhetoric, or is it yelling fire in a crowded theater?

I think we can move beyond this to a deeper problem with the more wide-ranging definitions of the right to speech. Because once you disconnect the concept of free speech from the specific notion of keeping the state out of regulating expression, you run into a new problem. You need some way of deciding who does or doesn’t have the power to enable speech.

Sitting here at my desk, I have the unconditional right to speech, in the sense that I can yell out whatever I please, to be heard by nobody but my dog and my partner trying to work in the office across the hall. Milo Yiannopoulos and Richard Spencer are similarly unconstrained. The problems arise when a TV network chooses to interview Spencer, or the University of California chooses to give Milo access to their facilities.

They have the right to do that, you might say, and we should respect it. But what is it, exactly, that gives them a right to decide who gets to speak, but doesn’t give a mass protest movement the right to say who shouldn’t get to speak?

I’ve seen some people argue that shutting down speech through protest is undemocratic–because, I suppose, we didn’t all get a vote on whether fascists should give speeches. But that’s precisely it–we didn’t get a vote on this, it was the media and places like UC Berkeley that made the decision. So in that sense all the decisions are equally undemocratic, and we have a contest of power, between two conflicting claims about who has the right to grant someone the ability to disseminate their message. And as Marx put it, “between equal rights, force decides.”

Here we get to what I think is the heart of the matter. This is about a principle that is fundamental to the mainstream of modern liberalism, one that tends to override all others. It is not the principle of free speech, or any other abstract right. Rather, it is an unwavering faith in the unquestionable legitimacy of the state, and of the rest of society’s powerful institutions.

This faith is distilled perfectly in this tweet from Shadi Hamid. “Can’t believe ppl on my Twitter feed are saying punching Richard Spencer is okay or encouraging it. I mean, it’s illegal to punch people.”

That’s it. That’s the whole argument. What makes this especially rich is that Hamid, a foreign policy fellow at the Brookings Institution, is known for saying things like “the better, more just world that so many hope for is simply impossible without the use of American military force.” So an opponent of violence he most definitely is not. He simply demands that it be carried out by agents of the U.S. government.

This, of course, is a very old liberal faith. It is merely the insistence that, as Max Weber put it, a state, to even be a state, must claim the “monopoly of the legitimate use of physical force”.

The presumption of legitimacy, for people like Beinart in the article cited above, extends beyond the use of force and beyond the core apparatus of the state itself. Public institutions created by the state, respected private institutions and private property guaranteed by its laws; all must remain inviolate. And it is these institutions alone that may decide who does or does not receive a platform to speak.

The Australian Broadcasting Corporation’s decision to give Richard Spencer a platform is presumed to be legitimate; a protester’s decision to deny him one is presumed not to be. The University of California’s decision to host Milo cannot be questioned, while the decision of the students and local community to shut him down must be denounced. (In other situations, the principle is ambiguous. Had Shia LaBeouf constituted the legitimate authority to shout down a white supremacist who attempted to shout a Nazi slogan on a livestream he had set up?)

The liberal will respond that because we voted for our elected representatives, everything that they do, everything that legally constituted institutions do, and anything that is consistent with the laws of private property, is legitimate. All else is dangerous and subversive, and risks anarchy, fascism, or worse.

But for radicals, America is not already great, nor is it completely democratic. And so we are under no obligation to grant legitimacy to the existing order.

This is, and always has been, a crucial dividing line between liberals and radicals. It’s not that we necessarily think it’s ideal to decide questions of speech–or anything else–through ad-hoc clashes between protesters and institutionalized power. What we insist on, however, is that the legitimacy of the state and of other institutions of capitalist society can be questioned. This presumption is necessary to justify even something as basic as waging an illegal strike or marching without a permit. But it leads, for some socialist traditions, all the way to the idea that in truly revolutionary situations (which is far from where we are now), an actual dual power can be constituted, with new institutions arising to contest and eventually replace the existing ones.

Liberals instinctively resist these ideas, and fall back on their reverence for the process, the procedure, and the rule of law. But it will be interesting to see how their thinking develops in the era of Trump.

For we are now living in a moment where the executive intends to rule by decree, and where its agents cavalierly defy direct court orders. And at the same time, also one where, as Corey Robin argues, many horrors are completely achievable within the boundaries of the traditional institutions and rules. If all the rusty machinery of American constitutional democracy is so easily disregarded, or so easily turned to evil purposes, what will become of the liberal insistence that it is only the old institutions, and not the masses in motion, who represent a legitimate order?

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